President Trump’s Executive Action on Immigration

Feb 1, 2017

On Friday, January 27, 2017, President Trump signed an Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

90-Day Travel Ban for Nationals of Certain Countries

Most notably, the Executive Order imposes a 90-day suspension on entry into the United States for all citizens and nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.     The plain language of the travel ban encompasses nonimmigrants and immigrants alike, meaning even green card holders and other long-time residents of the United States from the specified countries are potentially covered by the travel ban.   The Executive Order does, however, provide the Secretaries of State and Homeland Security discretion to admit foreign nationals affected by the ban on a case”‘by”‘case basis when in the national interest.   With regard to green card holders, on January 29, 2017, the newly”‘appointed Secretary of Homeland Security, John Kelly, issued a press release explaining that the entry of lawful permanent residents will be deemed to be in the national interest and that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, permanent resident status will be a dispositive factor in [the agency’s] case-by-case determinations.”   Despite this reassurance from Secretary Kelly, there continue to be reports that green card holders from the specified countries are either not being permitted to board flights to the U.S. or are being subjected to prolonged questioning by U.S. Customs and Border officers upon arrival.   Furthermore, it is unclear at this time whether nonimmigrants can apply for entry into the U.S. pursuant to the national interest exception and under what circumstances that exception may be granted.

There have been numerous lawsuits filed across the country challenging the travel ban, and some judges have issued decisions staying portions of the Executive Order and/or requiring the release of permanent residents detained pursuant to the Order.   However, the scope of these orders is limited, and the Department of Homeland Security has indicated that it will continue to implement President Trump’s directives.   Accordingly, due to the continued uncertainty, we recommend that citizens and nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen refrain from traveling outside of the United States at this time.

Please note, however, that dual citizens may still be able to enter the United States if they present a travel document from a country other than the seven countries encompassed in the order.   According to Q&As from U.S. Customs and Border Protection released on January 31, 2017, for purposes of the travel ban, individuals are being treated according to the travel document they present.   Thus, foreign nationals from one of the specified countries may still be able to enter the U.S. if they present a valid passport from a country that is not included in the travel ban.   For example, an individual who is a citizen of both Iraq and Canada should be permitted to enter the U.S. on his/her Canadian passport.

Suspension of Visa Issuance and Other Immigration Benefits

In addition to the suspension of entries for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, the issuance of visas and adjudication of immigration benefits for individuals from these countries has also been impacted by President Trump’s Executive Order.   U.S. embassies and consulates have cancelled visa interviews for foreign nationals from the specified countries, and U.S. Citizenship and Immigration Services has suspended the final processing of petitions and applications filed by or on behalf of citizens and nationals of the specified countries.   These actions may cause additional delays for foreign nationals of these countries seeking both immigrant and nonimmigrant visas at consulates abroad or waiting for final decisions from USCIS on pending petitions and applications.

The Executive Order also calls for a review by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, of the country’s system for issuing visas and other benefits under the Immigration and Nationality Act and calls for the implementation of uniform screening standards for all immigration programs.   As part of these reviews, the administration could further limit or delay the issuance of visas and other immigration benefits to citizens and nationals of other countries.

The Order also eliminates the Visa Interview Waiver Program, meaning in”‘person interviews will be required for most nonimmigrant visa applicants.   The reviews and changes required by the Order will likely cause additional, significant delays in obtaining both immigrant and nonimmigrant visas at consulates abroad, regardless of the foreign national’s country of nationality.   Thus, the potential for increased interview wait times and processing times should be considered when planning future travel to the United States.

Suspension of Refugee Program

The Executive Order also implements various changes to the U.S. Refugee Admissions Program (“USRAP”).   The Order suspends USRAP for all countries for a period of 120 days and indefinitely for citizens and nationals of Syria.   Exceptions to the overall suspension can be made on a case-by-case basis if it is in the national interest, the person would not pose a risk, and the person is a religious minority facing religious persecution, or the admission of the person is required to conform U.S. conduct to an international agreement, or when a person is already in transit and denying admission would cause hardship.   In addition, for the current fiscal year, the Executive Order reduces the number of refugees to be admitted to the United States to 50,000, dropping U.S refugee admissions to the lowest level in a decade.

The full text of the Executive Order can be found here.   The breadth and effect of this Order remain to be seen and will continue to develop over the next weeks and months.   Thus, please continue to check our website for additional highlights and developments.

Additional Executive Action on Immigration

In addition to the Executive Order issued on January 27, 2017, President Trump is also considering additional Executive Orders that could alter the requirements for and processing of various work-related statuses.   A draft order with some of these proposed changes is available here.   We will continue to monitor these developments and will update as appropriate.